Human rights challenges in the digital age: Judicial perspectives

By Michael O’Boyle

The digital space is a powerful enabler for more inclusive democratic discourse, participation and policy-making. At the same time, digitisation comes with new challenges.

The abundance of data in the online space and powerful algorithm-based technologies pose serious risks to privacy, as well as to other interrelated human rights. The trans-border nature of the Internet itself presents significant legislative and judicial challenges for existing legal and institutional frameworks.

This book follows on from the June 2019 seminar paying tribute to the outstanding contribution of Lawrence Early, Jurisconsult of the European Court of Human Rights, as he was about to retire. The seminar brought together members of the judiciary and prominent legal practitioners and academics, as well as representatives of European institutions and non-governmental organisations. Speakers from different legal systems and jurisdictions exchanged views on the ways to address the complexity that protection of human rights online presents for the judiciary. The seminar focused on three major subjects: judicial protection of freedom of expression and the right to privacy in the digital environment; the concept of jurisdiction in the World Wide Web; and the implications of Big Data.

Given the breadth and significance of the issues arising in this complex, technical and fast-evolving area, the publication of these keynote contributions will undoubtedly inform further reflection on these matters by judges, legislators, experts and, perhaps most importantly, the general public.

• Language: English
• Publisher: Conseil de l'Europe
• Release date: Jan 6, 2020
• ISBN: 9789287190079

Book preview

This book follows on from a seminar which took place on 28 June 2019 in Strasbourg to honour the outstanding achievements of Lawrence Early, Jurisconsult of the European Court of Human Rights, on the occasion of his retirement. Most of the contributions are expanded versions of panel interventions made during the event.

The seminar was organised by the European Court of Human Rights in conjunction with the Directorate General Human Rights and Rule of Law (Council of Europe).

Editor-in-Chief

Michael O’Boyle

Former Deputy Registrar of the European Court of Human Rights

The Editor-in-Chief would like to thank all of the contributors for the sterling efforts that they made to enable this book to be published so soon after the seminar. He would also like to thank the sponsors for their enthusiastic support.

Finally, he would like to thank the Directorate of the Jurisconsult and in particular Leif Berg, Head of its Case-Law Information and Publications Division, his assistant Mireille Moegling and editors Rebecca Bastier, Ioulia Iankova and Jane Swift for their invaluable assistance.

Organising Committee for the seminar

Anna Austin

Leif Berg

Elena Brodeala

Olga Chernishova

Gail Fitzpatrick

Rodica Gonta

Carmen Morte-Gomez

Stefano Piedimonte Bodini

Sponsors

Ministry for Foreign Affairs of Finland

Directorate General Human Rights and Rule of Law (Council of Europe)

Lawrence Early, former Jurisconsult

of the European Court of Human Rights

Preface

Sir Nicolas Bratza QC, former President of the European Court of Human Rights

This volume contains the fruits of a fascinating seminar held at the European Court of Human Rights on 28 June 2019. The title of the seminar was Human Rights Challenges in the Digital Age: Judicial Perspectives and the event brought together outstanding speakers and panelists drawn from the international judiciary, from the academic world and from the ranks of experts in the field of media law and data protection.

The seminar was held to mark the retirement from the Strasbourg Court of Lawrence Early after 23 years as a member of the Registry of the Court, old and new, and, since March 2013, as the Court’s Jurisconsult.

The subject matter of the seminar could not have been a more fitting one to celebrate the exceptional career of someone in whose professional life media law, data protection and human rights had played such an important role. After starting his career as a member of the Northern Irish Bar and as a lecturer in law at the University of Sheffield, Lawrence Early joined the Council of Europe in 1982 as a lawyer in the Directorate of Legal Affairs, with the responsibility, among others, of drafting legal instruments and opinions on data protection, privacy and access to information. In 1991 he became the Head of the Media Law Section of the Directorate of Human Rights, a position he held for some five years. In that post his roles included the management of intergovernmental activities in the area of media law and policy and advising the new democracies on their press, broadcasting and journalism legislation in the light of the standards set by the European Convention on Human Rights and the Court’s case law.

In 1996 Lawrence joined the former Court as Head of a Legal Division. In 2001, he became Deputy Registrar of the Fourth Section of the new Court and in 2004 was appointed as Deputy Grand Chamber Registrar, a post in which he was responsible not only for ensuring the processing and quality checking of draft judgments submitted to the Grand Chamber and advising the Grand Chamber on matters of case law and procedure but also for managing the Court’s Research and Library Division.

In 2006 Lawrence was appointed as Registrar of the Fourth Section of the Court, a post he was to hold until his appointment as Jurisconsult. As someone who had the privilege of presiding in the Section for five of those years, it is difficult to overstate the contribution made by Lawrence to the work of the Section and to the Court as a whole. His considerable management skills, combined with a fine legal intelligence and detailed knowledge of Court procedures made him a priceless asset for the work of the Section. He had a prodigious capacity for work, being the last to leave the Court in the evening, clutching his familiar black brief case, stuffed to bursting point with cases on which he intended to work overnight. He also had an encyclopedic knowledge of the Court’s case law, with an uncanny ability to recall cases, sometimes long forgotten, which could provide guidance on the issues to be decided. Listening to Lawrence at weekly meetings discussing the cases that were to be deliberated by the Section the following day was like attending a masterclass on the Court’s jurisprudence. The authority with which he spoke about cases was always allied with characteristic courtesy, modesty and humour.

At the Section meetings themselves, Lawrence was an immensely reassuring presence. His deep knowledge of the Court’s case law, both substantive and procedural, proved invaluable. On some occasions he would offer wise counsel as to how the jurisprudence might be developed to advantage; on other occasions, he would offer suggestions as to how to resolve inconsistencies with what was proposed in other Sections, all of whose drafts he had meticulously read; on still other occasions, Lawrence would gently but firmly nudge the discussion back on track where he felt that the Court’s jurisprudence would go astray if a certain line of argument were to be followed. He remained however utterly loyal to the final decision of the Section even if the result reached was one with which he personally disagreed. A draftsman of the highest quality, he could invariably be relied on to refashion sentences and phrases in a draft judgment or decision which were clumsy or unclear so as to render them models of simplicity and elegance.

Outside the Section meetings themselves, Lawrence’s contribution to the work of the Court was of inestimable value. Generous and patient to a fault, his door was quite literally always open to provide advice and assistance, whether to judges, members of the Registry or representatives of the parties, all of whom beat a regular path to his office. Although his days were invariably full, Lawrence never gave the impression that one was imposing on his time, even if the case or matter on which his help or guidance was sought was one in which he was not directly involved. He remained in particular a constant source of support and encouragement for the more junior members of the Registry, whose pleasure in working under Lawrence was palpable.

But it was his achievements as Jurisconsult of the Court that the seminar was principally designed to honour. The post of Jurisconsult was first created in 2001, with the primary responsibility of ensuring the consistency and quality of the case law of the new Court, providing high-quality research on Convention, comparative and international law and ensuring knowledge of the case law within the Court itself and its dissemination beyond the Court. With his unique experience and knowledge of the case law and his management and diplomatic skills, Lawrence was an obvious choice for the post. As the Registrar of the Court put it in his speech at the conclusion of the seminar, the vacancy notice could have been written for Lawrence at a time in its history when the Court’s output was continually expanding and when the Court’s case law was increasingly accompanied by calls for greater clarity and consistency. It was a role that Lawrence was to fill with the utmost distinction. His masterly and witty presentation of case law developments and conflicts was a highlight of the weekly Registrars’ meetings and was, according to informed sources, guaranteed to enliven even the most mundane discussion.

Supported by an outstanding team of senior lawyers from different Divisions of the Court, the Jurisconsult service, with Lawrence at its helm, has grown in both importance and prominence to become a key and indispensable service within the Court, its influence extending well beyond the confines of the Court itself. One of the major innovations during Lawrence’s tenure has been the setting-up and expansion of the Superior Courts Network, designed to foster closer dialogue between the Court and national courts of Contracting States in their shared responsibility to protect Convention rights. The Network facilitates, through the Focal Points established in the respective courts, an exchange of information on recent decisions and judgments. It not only confers on higher courts that are parties to the Network privileged access to analyses, notes and other material on recent judgments of the Strasbourg Court, as well as research reports on a range of Convention matters, but provides the Strasbourg Court itself with a valuable source of information about domestic law and practice. In its short existence since it came into being in 2017, the Network has already established itself as a central feature of the Court’s armoury, some 82 superior courts from all parts of Europe having to date become its members. The success of the Network, established under Lawrence’s stewardship, may prove to be one of his most enduring legacies to the Court.

So far as the Strasbourg Court is concerned, it is no exaggeration to say (with apologies to Voltaire) "si Lawrence Early n’existait pas, il faudrait l’inventer. At the seminar in his honour the Registrar of the Court expressed it somewhat differently when he spoke for all in the Court in summing up Lawrence’s contribution to its work: He is one of the historic figures of the Registry and his departure will be felt by many as the end of an era. He represents a style of management that is seen as profoundly decent and fair and he is viewed with affection and esteem in equal measure by all who worked with him."

But, as was also said at the seminar, there is more to Lawrence than that. A strong family man, his interests outside the professional sphere remain many and varied. His passion for, and knowledge of, modern literature and Irish poetry has always been matched by a broad range of interests, from football to theatre (the annual Edinburgh Festival fringe theatre being a particular favourite), from opera to pop music (especially that of the 1960s), from travel to cinema (including the films of Alfred Hitchcock, of whose work he is a special admirer). Among his manifold qualities, Lawrence’s common touch and his gift for friendship must rank very highly, every encounter with him being marked with a generosity of spirit and imbued with a gentle, if sometimes mischievous, sense of humour. No Court event will ever be quite the same without Lawrence and Jane, whose warmth, kindness and good humour have endeared them to a legion of friends and admirers within the Court and beyond.

What of the future, now that Lawrence is released from the burdens of office in the Court? An anecdote from 2012 may perhaps provide an answer. At a Section dinner, those present were invited to state whether they had any unfulfilled ambition, assuming that time, place, money and even talent provided no obstacle. The answers were as surprising as they were varied and included such careers as a fire fighter and a rock star. Lawrence ventured the thought that he would like to have been a journalist in New York. While certain of the other careers suggested at the dinner may by now be out of reach, who is to say that we will not one day be able to read Lawrence’s letters from America in the digital age?

PART 1:

JUDICIAL PROTECTION OF FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY IN THE DIGITAL ENVIRONMENT

Chapter 1

Opening remarks

Christos Giakoumopoulos, Director General, Directorate General Human Rights and Rule of Law, Council of Europe

Over the past ten years we have witnessed major global developments in the online environment that carry with them real offline consequences. Digital technologies today constitute serious challenges, such as: risks to privacy due to massive and uncontrolled data processing; the uncontrollable spread of hate messages and other abusive forms of expression online; new forms of cybercrime and child sexual abuse; or the use of the Internet for terrorist purposes and for sowing distrust and fear. However, digital technologies can also be used for good purposes; they can help expand our rights and protect us, for example from profiling and censorship.

In this highly complex context, where privacy rights are often directly confronted with national-security considerations, and where legitimate efforts to combat illegal content online can produce dramatic negative effects on freedom of expression, the risks for human rights are particularly high.

States as guarantors of human rights within their jurisdiction, are challenged by the complex and trans-border nature of the Internet and are pressured to look for workable solutions, including by introducing/ updating their relevant legislation and, at the level of domestic courts, by addressing the new challenges through judicial interpretation.

The core issue lies, however, in the fact that traditional management models hardly withstand the pressure from a rapidly changing world. New approaches are needed, such as the co-regulatory approach consistently promoted by the Council of Europe, to address without delay the constantly evolving challenges. At the same time, hasty or unbalanced responses may result in violations of individual human rights or in negative effects for whole groups and communities.

In these times of turbulent digital transition, our common values must serve as our foothold. It is crucially important that existing international instruments, that our landmark instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms, is complied with, both online and offline. It remains applicable and highly relevant irrespective of contextual changes brought about by technological development.

Countries that have committed to protect and promote human rights – all Council of Europe Member States – must shape their digital-related policies to ensure that they do not interfere inappropriately with human rights, and that legislative and regulatory frameworks are created that foster the best possible enjoyment of human rights. They must ensure that effective remedies are in place, and that relevant institutions, the judiciary first and foremost, are well prepared and properly equipped to understand and address effectively the complexity of human rights issues stemming from the online environment. Assisting its Member States in this challenging task is a high priority at the moment for the Council of Europe.

Only in the past three years have we developed a set of important guidelines and standards addressing the most pressing issues: the Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data (2017)¹ seek to ensure that when Big Data involves the processing of personal data, each of us is in a position to exercise our personal autonomy and our right to control our data; the Recommendation CM/Rec (2018) 2² on the roles and responsibilities of Internet intermediaries addresses the challenge of shaping a rule of law-based relationship between State authorities and intermediaries and their respective human rights obligations and responsibilities; the Committee of Ministers Declaration on the manipulative capabilities of algorithmic processes (13 February 2019), seeks to raise awareness about the dangers for democratic societies that emanate from the possibility of employing these technologies to manipulate and control not only economic choices but also social and political behaviours.

We are currently preparing a Recommendation on the human rights impacts of algorithmic systems that will provide concrete guidance to States in their roles as users, procurers and regulators of algorithms, and to private sector players on concrete issues such as how datasets should be managed, how data processing infrastructure should be developed, or how algorithms should be modelled and tested. Most importantly, as recently decided by the Committee of Ministers, Member States’ representatives will start examining, on the basis of broad multi-stakeholder consultations, the feasibility and potential elements of a legal framework for the development, design and application of artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law.

These standards can guide Council of Europe Member States in shaping their Internet-related policies. But already now, we must ensure that any adverse impact on human rights is remediable. Courts have a crucial role in ensuring redress for those who have experienced adverse effects, accountability for those who are responsible, and preventing such harms from recurring. Thus far, a clear template for the involvement of courts and other independent bodies in identifying and remedying rights violations stemming from digital technologies is missing. This seminar was intended to provide an opportunity to explore the ways to better secure the protection of human rights online, address current challenges facing the judiciary, and examine the role of the courts in mapping the way forward in a human rights compliant manner.

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Chapter 2

Same standards, different tools? The ECtHR and the protection and limitations of freedom of expression in the digital environment

Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

INTRODUCTION

This chapter explores and analyses how the European Court of Human Rights (ECtHR) has applied and integrated basic principles on the right to freedom of expression in the digital environment, while reflecting the technology’s specific features and particular nature of the Internet. It also attempts to clarify where the European Court has put the cursor and which guiding principles it has developed in some important areas of online freedom of expression and information, applying Article 10 ECHR. A search on Hudoc, the database of the ECtHR¹, combining the key words freedom of expression and Internet selects 177 judgments, and 54 (mostly inadmissibility) decisions.² More than 50 cases on Internet and free speech are in the pipeline, as communicated cases. The ECtHR is perceived as the most important interpreter of human rights standards in Europe and regarded as influential far beyond the confines of its territorial jurisdiction.³ Its case law on the right to freedom of expression in the digital age is assumed to offer guiding and binding principles with regard to the protection and limitations of this crucial right in a democratic society.⁴ The jurisprudence of the last 15 years shows how the ECtHR has been confronted with new dimensions, applications and liabilities in relation to the duties and responsibilities following from the exercise of the right to freedom of expression on the Internet.⁵ Especially since Ahmet Yildirim v. Turkey⁶, on the blocking of Google Sites, and the Grand Chamber judgment in Delfi AS v. Estonia⁷ regarding an Internet news platform’s liability for user-generated content, there is an increasing amount of cases dealing with interesting and challenging aspects of freedom of expression and information on the Internet.

While the ECtHR applied its standard case law finding that interferences with Internet content related to child pornography, explicit sexual content accessible for minors, copyright infringements and hate speech were necessary in a democratic society, the Court in a few other domains found violations of Article 10 ECHR, taking into consideration some Internet-specific features. These cases are concentrated around four clusters: (1) the blocking of websites and of social networking accounts (2) interferences with radical, extremist or offensive online content (3) the liability of online media platforms for user-generated content and for hyperlinks and (4) the impact of bulk interception of online communications on the right to freedom of expression. The Court’s jurisprudence situated in those four clusters of cases demonstrates how the ECtHR has helped to create a higher level of guaranteeing the right to freedom of expression in the online environment, overruling (the application of) provisions of national law curtailing in an arbitrary, unnecessary or disproportionate way the right protected under Article 10 ECHR.

FREEDOM OF EXPRESSION AND THE INTERNET: THE FIRST CASES

The first judgment in which a reference to the Internet was part of the Court’s reasoning was in Éditions Plon v. France, on 18 May 2004.⁸ The case concerns an injunction prohibiting the distribution of the book Le Grand Secret, in which confidential medical information about the illness of the late president Mitterrand was disclosed. With regard to the order to maintain indefinitely the ban on the distribution of the book, more than nine months after Mitterrand’s death, the ECtHR observed inter alia that the book, of which about 40,000 copies had been sold, had [also] been disseminated on the Internet and had been the subject of considerable media comment. Accordingly, the information in the book was to a large extent no longer confidential in practice, and the preservation of medical confidentiality could no longer constitute an overriding requirement to uphold the injunction.⁹ The availability of confidential medical information on the Internet was referred to as an argument, amongst others, in favour of protecting the right to freedom of expression of the book’s publisher, even if the information at issue, in the book and on the Internet, had a negative impact on the confidentiality of medical information and on the right to privacy of the deceased president and his family. Some years later, in Aleksey Ovchinnikov v. Russia the Court clarified that in certain circumstances a restriction on reproducing information that has already entered the public domain – as it had been widely discussed in the press and on the Internet – may be justified, for example to prevent further airing of the details of an individual’s private life which do not come within the scope of any political or public debate on a matter of general importance.¹⁰

The first cases on freedom of expression in which the Internet played a more prominent role concerned explicit sexual content. Both in the case of Perrin v. the United Kingdom and in Pay v. the United Kingdom the ECtHR saw no reason to disregard the government’s arguments for upholding the justification of the interferences with the applicants’ posting of sexual explicit material on the Internet.¹¹ In Perrin the ECtHR emphasised that the web page in respect of which the applicant was convicted was freely available to anyone surfing the Internet and that, in any event, the material was... the very type of material which might be sought out by young persons whom the national authorities were trying to protect. It also observed that the obscene material was available on the free preview page of the applicant’s website, where there were no age checks. In K.U.v. Finland a 12-year-old minor had been the subject of an advertisement of a sexual nature on an Internet dating site.¹² Although the act was criminal and made the minor a target for approaches by paedophiles, the identity of the person who had placed the advertisement could not be obtained from the Internet service provider due to the legislation in place at the time in Finland. The ECtHR recognised that freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected. However, the Court emphasised that such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Furthermore, the ECtHR expressed the expectation that, on the basis of Article 8 ECHR (right to private life), Member States should put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet. According to the Court it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes such as those related to child sexual abuse. In cases related to sexual material and paedophiliac announcements on the Internet, the ECtHR referred explicitly to some specific characteristics of and risks or dangers in the Internet environment in order to strengthen the justification of the interferences at issue with the right to freedom of expression.

In K.U. v. Finland, cited above, the protection of minors against paedophiliac approaches justified limitations on the right to freedom of expression, and related anonymity rights¹³, while in the case of Karttunen v. Finland the ECtHR confirmed the justification of the criminal sanction for the possession, reproduction and public display of child pornography, downloaded from the Internet, in the context of artistic expression.¹⁴ Although the artist’s intention was not to commit a criminal act but to criticise easy Internet access to child pornography, possessing and distributing sexually obscene pictures depicting children was still an act subject to criminal liability that necessitated a proportionate interference with the applicant’s right to freedom of expression.

GENERAL PRINCIPLES, ACCESS TO